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Can fault factor into property division decisions in New York? P.1

by | Jan 6, 2016 | Property And Asset Division

Division of marital property is an important issue in divorce, and not only because of the inherent value of the property involved, but also because of matters of justice and equity. As readers may be aware, the state of New York utilizes an approach to property division which is more directly concerned with issues of justice and equity than some other states.

The approach is known as equitable division, and requires divorce judges to consider a variety of factors when making decisions regarding property division. New York’s property division statute allows judges to consider any factor deemed to be “just and proper,” but lists a number of specific factors.  

Included among these factors are things like the duration of the marriage, the age and health of the parties, loss of inheritance or pension rights as a result of the divorce, and the likely future financial circumstances of each party. Divorce judges have a good deal of discretion when it comes to property division.

Although state law generally prevents judges from considering matters of fault when dividing marital property, there is case law supporting a consideration of fault in certain circumstances. This is what happened in a recent divorce case decided by the state Court of Appeals.

The case involved a property division dispute between a wife and her incarcerated husband, who was found to have raped her during the marriage. Because of his behavior, he was convicted of first degree rap and sentenced to 40 years in prison. In our next post, we’ll look a bit at the case and how it highlights the consideration of fault—rare as it is—in property division considerations.


New York Law Journal, “Judge Denies Inmate’s Bid for Marital Assets in Divorce,” Joel Stashenko, Jan. 6, 2015.

New York Domestic Relations Law §§ 170, 236, 237, 238